FSM 2 Intrm. 021-026

Comparative negligence, which has displaced contributory negligence in most jurisdiction in the United States, should be given careful consideration by courts even though the Restatement (Second) of Torts refers only to contributory negligence and is silent about comparative negligence. There is reason to doubt that the FSM Supreme Court is bound by 1 F.S.M.C. 203pointing to the Restatements as a guide for determining and applying the common law. Ray v. Electrical Contracting Corp., 2 FSM Intrm. 21, 23 n.1 (App. 1985).

A trial court finding of recklessness is a finding of fact which may not be set aside on appeal unless it is clearly erroneous. FSM Civ. R. 52(a). Ray v. Electrical Contracting Corp., 2 FSM Intrm. 21, 25 (App. 1985).

The excavation of large holes on the land of private citizens, in areas where children play, and near a public road, is inherently dangerous and calls for special precautions. One who causes such work to be undertaken may not escape liability simply by employing an independent contractor to do the work. Ray v. Electrical Contracting Corp., 2 FSM Intrm. 21, 25 (App. 1985).

The determination of costs to be awarded to the prevailing party in litigation is a matter generally within the discretion of the trial court. Ray v. Electrical Contracting Corp., 2 FSM Intrm. 21, 25 (App. 1985).

Under the FSM Constitution's Judicial Guidance Provision, FSM Const. art. XI, § 11, FSM Supreme Court decisions are to be consistent with the "social and geographical configuration of Micronesia." Ray v. Electrical Contracting Corp., 2 FSM Intrm. 21, 26 (App. 1985).

The FSM Supreme Court's Trial Division is not precluded from allowing reasonable travel expenses of an attorney for a prevailing party as costs under 6 F.S.M.C. 1018 where there is a showing that no attorney is available on the island where the litigation is taking place. Ray v. Electrical Contracting Corp., 2 FSM Intrm. 21, 26 (App. 1985).

Grasslyn Ray and Kaylyn Kimuo, each two years old, drowned on the morning of November 5, 1980, in an uncovered, waterfilled hole dug the previous afternoon by defendant Electrical Contracting Corporation.

The hole, six feet long, four feet wide and six feet deep was one of some 300 holes dug by ECC pursuant to its contract with the defendant Maeda Construction Company for installation of an electrical distribution system, including electrical poles, on Moen Island in Truk State.

It was located on the land where Grasslyn Ray and Kaylyn Kimuo lived, a parcel known as Nesomas in Mechitiw Village on Moen Island. The hole's location had been approved by Kaylyn Kimuo's natural grandmother and adoptive mother, plaintiff Tasa Kimuo, who is also the lineage head for Nesomas. It was on a beach near the high water line and began filling with water soon after being dug.

The trial court held that ECC's conduct in leaving the hole uncovered was reckless. The court also found that Tasa Kimuo and the other two plaintiffs, Tony Ray and Mine Ray, parents of Grasslyn Ray, had known about the hole and had been contributorily negligent in failing to exercise due care to protect their children against the hazard. However, ECC and Maeda were held liable because of ECC's reckless conduct. 1

The trial court did not find that the plaintiffs suffered any pecuniary loss as a result of the deaths but awarded $15,000 damages for mental pain and suffering to each plaintiff, and punitive damages of 47,500 relative to each death. Thus, ECC and Maeda were held jointly and severally liable in the amounts of $37,500 to Tony Ray and mine Ray, and $22,500 to Tasa Kimuo.

A. Recklessness - The defendants contend treat the trial court erred in finding that ECC acted recklessly in leaving the hole uncovered. The trial court made the following findings of fact, none of which are disputed:

ECC did not warn any plaintiff of the existence of the hole. The hole was not covered, nor was there any fence, guardrail or barrier erected. ECC knew the hole constituted a danger to the owners and occupants of Nesomas and to those lawfully coming upon the land.

The only reason given for failing to cover the hole is that the tide would have washed any covering away. Of course, the fact that the ocean tides could reach the hole surely increased the risk. Ocean water covering or adjacent to the hole would obscure the hole's precise location increasing the likelihood that a child or any unwary passerby could fall into the hole. No explanation was offered as to why no barrier was erected.

A trial court finding of recklessness is a finding of fact which may not be set aside on appeal unless it is clearly erroneous. FSM Civ. R. 52(a). We find no error here in the finding of recklessness.

B. Assumption of risk - ECC and Maeda also contend that the plaintiffs, each of whom knew by the evening of November 4, 1980 that the hole existed, should be barred from recovery because they "assumed the risk" by failing to take steps to protect the children from failing in the hole.

This argument was presented to the trial court before decision on the case. Approximately one month after completion of the trial, the trial judge asked the parties, in writing, to address the issue of recklessness. In response, ECC and Maeda argued, among other things, that even if they were held to be reckless, they should not be liable to these plaintiffs because the plaintiffs assumed the risk.

Thereafter, the trial court issued its findings of facts and conclusions of law. In these the court found "reckless disregard" by ECC but made no finding of an assumption of risk. We interpret this as a rejection of defendants' assumption of risk argument. The defendants seek now to amend their answer pursuant to FSM Civil Rule 15 to add the assumption of risk defense.

We see no need for such an amendment. Defendants concede that they have had full opportunity to present any evidence they wish which might bear on the question of assumption of risk. Since the trial court apparently has considered the evidence with the question of assumption of risk in mind, the defendants' claimed defense has been considered fully at the trial level.

We hold that the assumption of risk defense is not applicable in this case. While the trial court's finding that the plaintiffs were negligent is well supported by the evidence that they were aware of the hole yet took no steps to protect the children, there is no evidence sufficient to support a finding of assumption of risk. The plaintiffs did not agree to have an uncovered, unprotected water-filled hole in their yard; they did not agree to

absolve the defendants of liability for any damages which might occur as a result; and they did not knowingly permit their children to go into the hole. W. Keeton, D. Dobbs, R. Keeton, D. Owen, Prosser and Keeton on Torts, § 368 (5th ed. 1984).

C. Vicarious Liability - Maeda also contends that there was no showing that Maeda and ECC were involved in a joint venture or agency relationship sufficient for the recklessness of ECC to be imputed to Maeda.

One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.

Restatement (Second) of Torts § 416 (1965). See also Prosser and Keeton on Torts, supra, § 71. As already pointed out, there is no evidence that ECC took any precaution to protect against the risks. Thus, the trial court was correct in holding Maeda liable for damages for ECC's recklessness.

Plaintiffs present for our review the trial court's exclusion of travel expenses in the amount of $1,080 from costs awarded to the plaintiffs under 6 F.S.M.C. 1018. These travel expenses include plane fare of plaintiffs' counsel on two trips between Guam and Truk for depositions and another trip for the trial itself.

The trial court reviewed Trust Territory High Court and United States decisions and found that those courts have generally refused to award travel expenses as costs. Based upon that information and a concern that there might be some instances in which the awarding of travel expenses would be inappropriate, the trial court denied the request for travel expenses.

The determination of costs to be awarded to the prevailing party in litigation is a matter generally within the discretion of the trial court. We do not determine here that it was an abuse of discretion for the trial court to refuse to award these travel expenses. However, it appears that the trial court may have considered itself prevented as a matter of law from making such an award.

Plaintiffs here demonstrated that there were no private practitioners or other attorneys on Truk who could have represented them in this case. Under the Constitution's Judicial Guidance Provision our decisions are to be consistent with the "social and geographical configuration of Micronesia." FSM Const. art. XI, § 11. The absence of an attorney within hundreds of miles is surely a social and geographical factor to be considered under this provision. In light of this provision and Article XIII, § 1 of the Constitution, recognizing the right of persons to legal services, we conclude that this Court's Trial Division is not precluded from allowing reasonable travel expenses of an attorney for a prevailing party as costs under 6 F.S.M.C. 1018 where, as here, there is a showing that no attorney was available on the island where the litigation is taking place.

We therefore remand the question of costs to the trial court for reconsideration in light of our holding that travel expenses are not barred as a matter of law in the circumstances of this case.

The decision of the trial court as to the liability of ECC and Maeda is affirmed. The case is remanded for reconsideration of whether plaintiffs' attorney's travel expenses should be allowed as costs.

1. The trial proceeded on the basis that the doctrine of comparative negligence was inapplicable, apparently on the theory that application of the Restatement (Second) of Torts, was required by 1 F.S.M.C. 203. The Restatement refers only to contributory negligence and is silent about comparative negligence. However, there is reason to doubt that this Court is bound by 1 F.S.M.C. 203. SeeRauzi v. FSM, 2 FSM Intrm. 8 (Pon. 1985). We suggest that comparative negligence, which has displaced contributory negligence in most jurisdictions in the United States, should be given careful consideration in future cases. (Back to opinion)